Bechor of a Safek Kohen

Yevamot (11:5) | Yisrael Bankier | a year ago

The Mishnah (11:5) considers a case where a kohen's baby was mixed
up with a shifcha's baby. The Mishnah discusses the various limits
placed on each of the children due the doubts regarding their status.
Even after the children grow up and eventually free one another, a doubt
remains whether each of them is a kohen or yisrael. Consequently,
the Mishnah addresses the further legal consequences of their
questionable status. One of those listed relates to a bechor – a first
born kosher animal.

Ordinarily, a bechor is brought to the Beit HaMikdash, given to a
kohen and offered as a korban. The kohen that offers the korban
can consume it. If however it develops a mum (blemish) that prevents
it from being offered as a korban, it is still given to a kohen.
Nevertheless, when slaughtered it can consumed by anyone. The Mishnah
explains that if one them owned a bechor, since there is a doubt
whether he is a kohen, he waits till it develops and mum and he can
keep it.

The Gemara (Temura 8a) asks at what point does a kohen have rights
to the bechor. Is it as soon as he is given the bechor or only after
it is offered? The Gemara brings our Mishnah as part of the
discussion and asks, what time does the law relating to the bechor in
our Mishnah apply? Only after the destruction of the Beit HaMikdash
or even during the time korbanot can be offered? The Gemara first
suggests that if the case only relates to nowadays, then the law would
be the same for anyone that owns a bechor and not just in the unique
situation in our Mishnah. Everyone needs to wait for the bechor to
develop a mum before a bechor can be consumed. Consequently, it must
refer to the times of the Beit HaMikdash. If so, the Gemara reasons
that the bechor must be considered as belonging to the kohen,
otherwise the gizbar (treasurer of the Beit HaMikdash) could
forcibley take the bechor for it to be offered. Ultimately, the
Gemara rejects this case as a proof, since the Mishnah could be
referring to nowadays only. The novelty of the Mishnah is that while
normally, once the bechor develops a mum it would still need to be
given to a kohen, in this case, since each of the individuals may be
the kohen, we cannot force him to give it to another kohen based on
a doubt.

The Tosfot Yom Tov, citing Rashi, explains that the rule in our
Mishnah applies even in the times of the Beit HaMikdash. Since he
may be kohen we cannot force him to give it to another kohen. If he
would offer the korban, he would lose it, as he might not be a kohen
and therefore not able to consume the korban. The Tosfot R' Akiva
however cites the above Gemara that argues if the kohen only merits
the korban after it is offered (as the Tosfot Yom Tov reasons in
Maaser Sheni 1:3) then the gizbar could take the korban to be
offered. If so, why could they retain the korban till it develops a
mum? Furthermore, he cites the Korban HaEida that questions how we
can delay offering the korban, violating the prohibition of "ba'al
te'acher" (do not delay) when doing so, based on financial motivations.

The question of the Korban HaEida also applies to the Gemara. Recall
that the Gemara reasoned that if the bechor already belonged to the
kohen prior to its offering, then the ruling of the Mishnah would
make sense even in the times of the Beit HaMikdash. The Gemara did
not appear to be bothered by the potential issue of ba'al te'acher.
Why?

The Shita Mekubetzet (8a, s.v. chelek) provides two answers. The
first is that the individual in our Mishnah can wait for the bechor
to develop a mum, but for no longer than a year so that the
prohibition is not violated. The Shita Mekubetzet also suggests that
prohibition of ba'al te'acher only applies in the case where it is
clear it belongs to an Yisrael. Since our case, the status of the
owner is in doubt, the prohibition would not be violated if we wait till
it develops a mum.

The Chazon Yechezkel (Rosh Hashana 1:2) notes that the Rambam
(Maaseh Korbanot 14:13) rules that ba'al te'acher only applies to
korbanot that are offered voluntarily. The Chazon Yechezkel
therefore understands that the regular ba'al te'acher that applies to
offering a korban does not apply to a bechor since its kedusha is
automatic. Since however it must be consumed within a year ("tochlena
shana be'shana") the prohibition however would be violated if it was
not consumed within the year (Bechorot 1:13). In our case however, no
prohibition would be violated. If he is an Yisrael, we already
explained that the prohibition of baal te'acher does not apply.
Furthermore the mitzvah to consume the korban with a year does not
apply to him since, as an Yisrael he is not allowed to eat the
korban. Even if he is a kohen, since the doubt regarding his status
prevents him from consuming it, the prohibition would not be violated
since the mitzvah only applies one that can consume the korban.